Coast Guard Boardings and Your Fourth Amendment Rights, Part 3

31 Oct

Continued from Part 1 and Part 2.

Various parties have challenged Coast Guard boardings and suspicionless searches in the highest courts, but the courts have consistently upheld the Coast Guard’s right to board vessels under the Revenue Cutter Act of 1790, and its subsequent variations.

Unfortunately, the highest profile cases have been for drug busts. Plaintiffs who really are drug smugglers are less sympathetic to the public.

 

A major drug seizure. All photos courtesy of US Coast Guard

A boater who’s a bit miffed about a Coast Guard search usually gets over it after a few weeks and takes it no further than kvetching to his friends. He doesn’t spend hundreds of thousands of dollars and years of his life trying to overturn a 222-year-old law.

And under this law, the Coast Guard boarding teams continue to do their jobs. We should only gripe about boarding parties if they are rude, threatening, or do something ridiculous or unprofessional.

But one detail might give pause to an conscientious coastie. They all have to take an oath that goes like this:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office I am about to enter. So help me God.”

Maybe they need to change it to:

“I____do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, except the Fourth Amendment part. Except for the Fourth Amendment I will defend the Constitution against all enemies…”

With regard to the Revenue Cutter Act of 1790, things have changed a lot since 1790. Back then there were essentially no recreational vessels. Almost all vessels were merchant vessels or warships. Revenue cutters had to be able to rein them in to collect taxes and control contraband. Today most vessels on most bodies of water in the US are recreational. These recreational boats aren’t carrying taxable cargo – they’re just carrying us.

Perhaps private, recreational vessels should just be exempt from suspicionless searches under 14 U.S.C. § 89 . Sorry, merchant vessels, you’re probably not too crazy about surprise boardings either, but you were the original target of the law.

Several constitutional law scholars bristle over suspicionless searches. I’ve read several law review articles on the subject, and let me tell you, if you’re not a lawyer they make great bedtime reading.

The best was Constitutional Barriers to Smooth Sailing: 14 U.S.C. § 89(a) and the Fourth Amendment, by Megan Jaye Kight. She suggests: “The government certainly has a vital interest in ensuring that vessels on the high seas are safe, seaworthy, and properly documented. However, this interest should not be advanced at the cost of sacrificing the constitutional freedoms of law-abiding seafarers.”

Ms. Kight goes on to suggest that instead of suspicionless searches at the discretion of the boarding officer, our boats get annual, scheduled safety inspections. If, on average, our boats get boarded by the coasties every year or two anyway, a scheduled search wouldn’t take up any more time or man hours. If they could knock a bunch of us off at one time, say by inspecting all the boats in the same marina, this would save time over random boardings.

At first blush this sounds like a costly administrative nightmare, but most of our boats get surveyed every year or two for insurance or marina safety anyway. Perhaps a survey from an accredited marine surveyor could substitute for a Coast Guard inspection? Or a safety inspection, and award of sticker, from the Coast Guard Auxiliary? Any of these options would be preferable to a surprise boarding, but still, our homes and cars aren’t subject to regular safety inspections, planned or unplanned.

If a vessel is entering the US from abroad, it should be open to search, just like a car crossing an international border. But a recreational vessel on a lake or river, where it can’t even have contact with the greater ocean or the countries that border it?

I could even live with searches being allowed on any vessel that ventures offshore. After all, the vessel could have come from who-knows-where, or could have rendezvoused with people smugglers, a drug shipment, or terrorists.

In the Coast Guard’s documentation, and on all charts, inland waters are delineated from offshore and near coastal waters. Inside of this line our Fourth Amendment rights could kick in. For voyages that originate and terminate in inland waters, vessels could not be boarded without a warrant or probable cause.

If you’re waving a bottle of Jack Daniel’s yelling, “Woohoo, I’m the King of England!”, leaving an oil slick behind you, running at night with no lights, or towing a child in your wake, well, there’s their probable cause.

For boaters who live near international borders, like San Diego, the Coast Guard would have reasonable suspicion they’d gone to a foreign country every time they left the harbor. Sorry, San Diegans.

So what does it take to have our constitutional rights extended to the water, an Act of Congress?

Actually yes, I think it would take an Act of Congress. I’m no lawyer, but court cases hinge on case law and precedence, and when we’ve got 222 years of precedence for suspicionless searches, not even the Supreme Court can just have a change of heart. The next time they try a Coast Guard boarding case under the Fourth Amendment, I’m guessing it will go the way it’s gone ever since the Revenue Cutter Act of 1790. For the law to change, it would take a movement in Congress–with pressure from a grass roots movement that starts right here!–to extend privacy rights to the water.

Boaters don’t represent a powerful force in politics, but we should. The latest statistics show 16 million registered boats in this country, and 75 million citizens who have been boating in the last year, and are thus classified as boaters. This is nearly a quarter of the nation, all of whom could be searched, and thus deprived of their Fourth Amendment rights, just by stepping on a boat.

Coast Guard personnel are generally polite, and for the most part treat the public with respect, but they’re human, have bad days, and turn very sour if you question their broad authority. While the average boarding lasts twenty minutes, they often order boats to return to the dock and delay voyages for an hour or two. This ruins an outing, and few boaters would welcome a surprise boarding. And someday the guys with the guns might not be so polite and professional, and then we’ll want the law on our side.

I’ll close with the words of Ms. Megan Jaye Kight, my favorite Constitutional law scholar:

“The inconsistencies and ambiguities in this area of the law require resolution. Until less intrusive alternatives are implemented through legislative action, the courts must ensure that the  guarantees of the Fourth Amendment are not assaulted, for the “shield against unreasonable searches does not rust on exposure to salt air.”‘

And on to Part 4 (added two years later)

Comments

  1. Tim

    Ok so they have authority to search your vessel, but what gives them the authority to demand you maintain course and move your vessel to a dock?

  2. Michael A.

    Just something I’d like to point out regarding what you said about cars not being subjected to regular safety inspections, as that’s not entirely true. In some states, cars are required by law to be inspected for safety regularly (usually annually or biannually). And some states that don’t require safety inspections still require regular emissions tests.

  3. David Clark

    4th amendment rights cannot be abrogated by Congress. If the government or anyone else doesn’t think the 4th amendment should apply to boats then the constitution needs amending. If you can pick and choose when rights don’t matter then what’s the point of having a constitution at all? Agreeing that the constitution is just a guideline rather than a law that must be obeyed, means all your rights are conditional. The pro/con of giving these unconditional rights over boats to the Coast Guard, contrary to the constitution, is irrelavant. Do you have rights guarranteed by the constitution or not?

  4. Otto Maddox

    Wow. Some of you aren’t big fans of freedom.

    The Coast Guard folks should be courteous. They work for us. We shouldn’t put up with intrusions as payment towards handling calls for help down the road. We already pay for that with our TAX money.

    We pay taxes for the police in our communities. Should we all give up our right to privacy in our homes as well? Just in case we need to call the police for help? Let any cop search our homes, our cars, anytime they like without need of a warrant?

    Of course not.

    I don’t blame the Coast Guard. They seem to be universally liked. It’s up to us, the people, to demand changes from our government. The police should be equally as courteous.. and we know that’s not always the case these days.

  5. Clark Beek

    Phillip, There is no connection whatsoever between the coast guard’s rescue operations and suspicionless searches. Are you suggesting that to be rescued by the coast guard, which our tax dollars pay for and we all support, you have to consent to giving up your most basic constitutional rights?

  6. Philip M Boggs

    As a boat owner, I have been boarded in Mobile Bay, in Puerto Rico,
    Long Beach, CA, Fildago Bay in WA and Newport, OR over the past 20 years.
    At NO TIME has any USCG Personal ever been discourteous or rude either to me or my wife.
    If you have ever required, or ever may require help from the USCG, you should not have a problem with being boarded.
    After all, when or if you send out a “May Day” call, these guys jump through hoops to your assistance in some of the worse weather imaginable.

  7. Joe D.

    I absolutely think the 4th amendment should apply to recreational/live aboard boaters. That is a home, i.e. Florida will make you a state resident based on your boat registration number. While safety inspections could apply since they have to save us. There should be parameters placed on searchable areas. Those parameters should be based on the 4th amendment.

  8. Another Former CG

    FORMER CG said it correctly. Why does the U.S.C.G. board at will? Because the names and numbers that any vessel displays can be easily painted over. Can’t tell a thing simply by paint. Boats of all kinds are stolen frequently. Believe it or not, most look very similar and determining size, age, and ownership can’t be accomplished without a close look. A little paint can change much of the appearance and it is not the Coast Guardsmen’s job to know every type and configuration of boat or ship. If they found you on a stolen vessel, you might find yourself detained, inspected, seized, towed to shore and then handed over to another Law Enforcement Agency.

    As for the complaint of damaging your sailboat’s fiberglass, most of the small boats are either equipped with bumpers or have an inflatable hull. Most damage happens when some smart aleck skipper gives a tug on the wheel to ‘bounce’ the Coast Guardsmen who are trying to board. A couple years ago off of California, a Mexican drug cartel boat rammed an USCG boarding party and killed one member. That man will have a life sentence, but he claims he was not trying to dodge and hit the small boat team. Video shows it all. Add on that depending on where you are boarded, there may be an aircraft watching the action. The one sailor with damages has not filed for damages I’d bet. Good thing he did not file, the entire boarding is overwatched from the host ship (the Coast Guard Cutter) and a false claim would be a federal felony. You would not want the Cutter to come alongside to better get your attention and provide direct overwatch, they have 50 calibre machine guns mounted, loaded and manned. I’d bet you saw those.

    All boarding parties are lead by and contain a fully trained cadre of Tactical Law Enforcement Officers. They are trained along with other Federal Law Enforcement Officers on all of the Federal laws, constitution, and regulations. The entire team is debriefed after each boarding and any Coast Guardsman reported as having been forceful, aggressive, or hostile without being provoked by an assault will be severely addressed.

    Maritime Law is the driving law that you cite and majority of laws under which the U.S. Coast Guard operate are similar. The Customs Bureau is the only other Law Enforcement Agency with offshore authority and they cannot perform in the very specific manners as the U.S. Coast Guard. For example, yes, the USCG can inspect a vessel that is tied up and permission is not required. Meanwhile, the Customs folks require search warrants. The FBI, U.S. Marshal Service, or other law enforcement agencies all have limited abilities on the water and quite often coordinate with the Coast Guard for a planned law enforcement action.

    As for the navigable waters and 4th Amendment, that authority is not solely the State’s RIghts, but these are Federally protected waters (off the coastal shores, up the Mississippi, and wherever the Coast Guard is deployed. These water and laws are protected from the creation of the nation. These are considered not to be simply the like of Massachusetts, Maine, Maryland, Florida, Missouri, or other state’s waters as the states are fixed in place and the waters are moving and massive. If you are arrested afloat, you and your case most likely will be turned over local law enforcement for prosecution. Then, you get all your constitutional protections!

  9. Jack

    I think the law is good as is. With all the smuggling of drugs, arms, nuclear, chemical and other such bad guy tools, I like the fact that the Coast Guard has got this ominous power. However, it they damage boat after not finding anything the boat owner should be compensated either by no fault insurance or direct from the Coast Guard or HLS.

  10. Eric Jensen

    2nd &4th amendment should be allowed if live aboard, when u come to a marina CG can search safety eguipment, (fire extuiger,life raft, ect),have weapons on their boat (shotgun, rifle ,two pistol )! Stop pirates, terrorists! Or even sharks!! Have safe for pistols! Just i go to Mexico, or any foreign port doesn’t mean I was a criminal!!! Cause I got food ,gas,water!! I believe in Constitution & Bill of Rights!!! If I’m commercial boat making money that different!!

  11. John Millan

    I was a Marine and I always admired my fellow Naval Service, the Coasties. I later retired as a NC National Guard MP 1st sergeant and served in the Gulf War and Iraq. Unlike the federal military, and like the CG, we had state (not federal) police powers under Title 32 USC and we were exempt from Possee Commitatus. I’m also a retired cop having worked the NC beach and was also a NC trooper. Later, i was a police chief in Alaska. As a cop on the NC and AK coasts, I worked with their boarding units and rescue boats and aircraft. They are professional, honest, dedicated and fearless heroes andifesabers. CG law enforcement can detain and notify local police, fish and game, marine patrol, etc. for state violations. Its a dangerous job and CG boarding officer wad murdered by smughlets in a boarding a few years ago on the Calif Coast. They have broad legal powers on open waters because if is not like open roads. It is adjoining non US territory of the high seas. The case of IL v. Carrol, USSC, 1925, says the abity to lawfully stop a car requires police to have reasonable suspicion, facts or circumstances that would cause a reasonable and prudent person to believe a crime MAY have occurred, MAY imminently be about to occur MAY have just occurred. Probable Cause is defined by the same definition, but by substititing the word MAY with PROBABLY IS about to occur, PROBABLY IS occurring, or PROBABLYJUST DID occur. This is however, a federal administrative inspection for safety, marine safety, etc., akin to the local or state Fire Marshal or Health Inspector or Building Inspector needing no right to enter. I teach criminal law at police academies and this is the law. Only difference being, in state law, as such administrative inspections are yes, an a necessary end run around the 4th amdment, if a citizen requires a warrant, no criminal evidence cen be used in court, including a dead body! Still, resisting an inspection is a crime. In Carrol, the USS ruled that motor vehicles are mobile and regulated, thus diminishing their privacy rights when on public roads. The 4th Amendment protects your home, residents and overnight guests in the house, outbuildings and curtilage, (land so close to same, that one must invade privacy to look in), namely wherevet you can walk naked on ypur hpme with a reasonable sense of privacy, and thus, on these areas, search warrants are required. Boats and vessels are even more mobile than cars and thus, a lessened expectation of privacy exists. I worked with the CG in Iraq and as a cop many times. They are lifesavers and heroes. Personally, with my knowledge that the ACLU was founded by communists, anarchists and WW1 draft dodgers and that it selectively supports orten absurd 4th, 5th, 6th and 8th Amendment arguments in supposed defense against tyranny, but it then turns around and supports a potentially all-powerful governmental gun control completely, it is a hypocritical and disgraceful organization. It’s members are no different than Nazi spies in WW2 to me. But on the USCG note, that is the legality of their powers by legal interpretation.,

  12. john mosby

    if they try and search my boat when it is tied up at the dock ,they are going to hear words only a navy man knows

  13. Richard T Azar

    If I’m eager to have them send a swimmer into the ocean to save my life and that of my crew, then I’m more than happy to welcome them aboard any time they want — without a warrant!!!

  14. Ken

    I was recently boarded approximately 1/2 mile from my home. I don’t agree with the silly argument that if you aren’t doing anything wrong you shouldn’t care about your rights. That theory is borrowed directly from totalitarian and/or martial law states. My personal space is just that, my personal space. And just because my personal space may be on the water, my Fourth Amendment rights should not be tossed into the water by zealous or overzealous enforcement agents checking the date on my fire extinguisher. There are numerous ways to inspect a vessel, or car, or truck, or even a bicycle, without randomly stopping it and opening it up. I have no argument with the men and women of the USCG, for the most part I have been favorably impressed with those I’ve met. But 2 years ago during a boarding in high seas their vessel accidentally rammed my boat and caused $2,000 in fiberglass damage — they don’t pay for damage they cause. And I have not said anything about the intimidation of several heavily armed agents boarding a relatively small vessel.
    This needs to go the supreme court, but not by some drug dealer or scoundrel that is trying to get a case dismissed. It is a issue of basic American freedom and I don’t expect to trade my boating hobby for my freedom. This is what our country has fought over for so many years. This is why so many lives have been sacrificed and people terribly injured in the name of freedom.
    Change this law, no governmental agency in the US should be exempt from the Fourth Amendment, these are the laws that protect us from government and make us the “Land of The Free”. These are the rights we fight to protect, recreational boaters don’t resemble terrorists.
    As Benjamin Franklin said, “those that will trade their freedom for their safety deserve neither.
    PS — I don’t drink so that boarding excuse doesn’t exist :)

  15. Clark

    Well said, Letz think. I’ve always wondered if the means to challenge this thing might be somebody taking the fall…refusing a boarding, being jailed, then fighting it on constitutional grounds. Your way might be a good way to wear them down, but the Coast Guard isn’t really the problem. I’ve been writing some emails to congressmen, and guess what?, haven’t heard anything back…but I might…

  16. LetzThink

    Interesting article. I’ll share a couple thoughts, for what it’s worth.

    First, just because something is the way it is does not automatically make it right. From my perspective, the Constitution is the framework that binds the legislative and executive branches from abusing the delineated rights of citizens – until the Supreme Court interprets it (often stupidly, IMHO). The Revenue Cutter Act of 1790 is a creation of a congress which did not have the authority to circumvent the 4th Amendment and any execution of the act without regard to the protections of the citizens per the 4th Amendment should be unconstitutional – period.

    Every single argument I’ve seen made for why the CG does these boardings could also be made for police doing warrantless searches of your car, business, etc. Sure, they are all good justifications and we presume they are for our safety – but as has often been quoted, those who would give up their freedom for safety deserve neither.

    I have no personal problems with an honest CG officer just trying to do his job, and I don’t think most of us would. But how do you protect good, honest and law-abiding citizens from those that would abuse the power? You can’t, UNLESS you bridle the power they are given – which is the whole point of the Bill of Rights in the 1st place. Our Founding Fathers knew all too well how power corrupts and invites abuse.

    Several of the examples in the article and comments illustrate clear abuses – pirate-like approaches, searches of boats in a marina in the middle of the night, a threatening presence (assault weapons, etc.), and so on.

    Is a boat you are domiciled on, even temporarily, you home? I remember reading of an appeals court case in Miami several years ago that found that a homeless person’s backpack was protected by the 4th Amendment. Also, we know that an RV is protected as, I’m pretty sure, is a hotel room. The point being that one should not have to be a full-time liveaboard to have 4th Amendment protections, even from the CG.

    So, what would I do? I think I would just say something like “Sir, thank you for your service to our country. I respectfully do not consent to any searches. If you choose to conduct a search against my wishes, I will cooperate and not resist. But please note that the 4th Amendment, which is part of the Constitution you swore an oath to uphold and defend cannot be mitigated by any authority congress or your superiors may have given you (in other words, any order to board is an illegal order). Please note my objection and my cooperation.”

    Afterward, I might write a letter to the Commandant of the Coast Guard with CCs to my congressmen and senators detailing the experience and my objections. Honestly, it would financially be hard to justify going any further unless they tried to make up some charges or something – and therein lies the real problem, the reason why they continue to do it, which is that no one has pushed back enough to get the court (or congress) to stop them.

  17. martin

    Ed Duclos

    Your line of thinking is whats wrong with this world.
    The forefathers that drew up the constitution knew EXACTLY what they are doing. to protect us from these ridiculous intrusions on our privacy.
    If they are not acting in a law enforcement capacity,and only in a safety capacity then they have no right to violate our privacy any more than anyone else.
    This nonsense was enacted as a commercial codification and if I am not acting in a commercial capacity and I am a private citizen,then I have not entered into any contract or commercial agreement with these people. I highly respect the coast guard as long as they are saving lives and protecting the shore. Other than that…Dont come into my floating home with your Bu
    And if those MFr’s are stupid enough to do that crap while im asleep,somebody is going home in a rubber bag.
    You can not usurp the constitution I dont give a Shat who you are.
    You have let them continue and this is why they do it.
    Those who trade liberty for security deserve neither.

  18. Mr. Threat

    I must disagree where you say “For boaters who live near international borders, like San Diego, the Coast Guard would have reasonable suspicion they’d gone to a foreign country every time they left the harbor. Sorry, San Diegans.”

    On Wikipedia (https://en.wikipedia.org/wiki/Terry_v._Ohio) it says reasonable suspicion means reason to believe that a “person has committed, is committing, or is about to commit a crime.” In other words, it means having reason to believe that some PARTICULAR boat has IN FACT entered the country illegally. Merely being in an area where one might have the OPPORTUNITY to enter illegally is not reasonable suspicion. Think about it: when we’re in our cars, we have the OPPORTUNITY to speed, or to illegally take a short cut off the road, or to carry drugs in the car. Yet the police can’t pull us over without reason to believe we’ve actually done one of these things.

    I’m sure they have radar, patrols, etc. near the border to help with the “reasonable suspicion.” They don’t need to do random stops just to ask people “Have you been to Mexico?”

  19. Alan

    15 or so years ago, early days of black and white gps, we were on a 33′ sailboat boarded in Long Island Sound returning from Block Island. I was lookout and observed in the dusk an unlit motorcraft that was approaching us. At first I thought, “Hmm, that buoy seems to be moving.” We were concerned. Not far from us, jet skis were jumping wakes and speeding about from the nearby harbors. We were tired from our trip but had to endure one of these boardings. We thought they would have done better policing the jetskis rather than an cruising sailboat. We were not impressed. We knew they had the right to board and complied. Left a bad taste afterwards, all of you uscg members and family members here. So they can violate the rules of the road – no running lights – to do safety work. LOL

  20. Pingback: Coast Guard Boardings and Your Fourth Amendment Rights | From the Trenches World Report

  21. Dan

    Let’s be clear; the foundational law we are discussing here was for commercial purposes. Today, officials can and do enter places of business for inspections of various kinds. As a former OTR CDL driver, I expected and accepted that I could (and was) stopped for various reasons, including while driving solely within the country.

    But here, we are talking about private, leisure craft, and that is a whole different ballgame. This is the difference between “public” and “private”.

    I acknowledge that there are valid reasons why certain inspections/searches are required; fly internationally and you know you must pass through customs and the procedures that go with it.

    I accept that a private vessel similarly must be checked and processed in such circumstances. There is a world of difference, however, between being required to report on arrival for processing, and being boarded in the dead of night. The former is civilized, the latter is the stuff of horror stories.

    I’ve read comments from members and family of the CG, and I sympathize; it is a dangerous job, and most of you say the CG personnel don’t like to do it. Yachties don’t like having it done either. Take one more step now and realize what has just been said… Our common reaction to this activity is what we call a “self-evident truth” that this activity is fundamentally wrong, and has no place in a free society.

    Do not tell me it is for my own safety, for precedence on land clearly shows that our right to privacy is viscerally understood to be greater than allowing full unfettered violation of that privacy in the name of safety. There are civilized means to ensure compliance when necessary and when motivations are true and just.

    Do not tell me, “if you have nothing to hide, you shouldn’t mind”, for that is an attitude of convenience to allow people to take more power over you. Freedom is not easy, nor free. We must stand and resist when we know something is wrong.

    Don’t take it out on the CG though. They are doing their jobs, and they have no ability to change the law. Be polite, be cooperative. Remember that their pulse is up too – they have no idea what is waiting for them on that yacht they’re about to board. I’d go so far as to say turn on a light in the cockpit area so they can see you clearly and easily, and keep your hands in view. It is a small thing, but if you can help them relax, I’m willing to bet your experience with them will go much more smoothly.

  22. Anonomyous boater

    Favor, there is no favor here, only training for them at your expense and discomfort for their real job. The War On Drugs.

    Which if you haven’t noticed we have lost.

    The 18 year old with an attitude and a gun isn’t there to “Help Me”.

    The chief petty officer of the local coast guard who took his private boat out drunk and ran into my boat while she was in her slip was there to help me too I imagine….

    Get over the idea that the government is there to help you or that they are protecting your life or liberty. Given an order by a superior, they will shoot you dead regardless of who you are or what you have not done. At the end of the day after you are dead, the investigation will determine that they killed you with due regard to their procedures. Not the law, their procedures.

    This is a police state, and your only answer is to be polite to the man that has his boot on your throat and a gun to your head. Good advice but not because they are wonderful helpful people, but because they can shoot you dead without any accountability or any reason. Always be polite to people with unlimited authority, and no accountability. Also though try and stay away from them and if you have a constitution it should try to keep them away from you.

  23. Ed Duclos

    Dean, while it may not be a direct “favor” when the CG boards you, it is a favor in that they are keeping the waterways safer, in many ways. And I doubt seriously that anyone has pointed a gun at you during boarding…unless you opted to act like a jerk, in which case I expect that you’d be treated the same way you’d be treated if you acted like a jerk during a traffic stop. And the “supreme law of the land” is obviously not so clear, otherwise we wouldn’t be having this conversation…not to mention that said “law of the land” has been amended many times, hence, subject to interpretation and modification. BTW, my reference to “God-given” is simply my reaction to people who seem to put the Constitution on a par with the Bible.

  24. Shannon

    As a coastie wife I can say without a doubt I haven’t meet a single coastie that enjoys boarding anyone’s boat. They are doing boarding to make sure all your friends and family are sailing safely. My husband has started choosing jobs where he doesn’t have to do boardings (bouy tenders for one) because there are people out there who will shot him just because they don’t want him on their boat. Since there is no regulation on who can own or even run a boat someone needs to be there to make sure everyone is safe. My husband’s had to save 4 children who were left stranded on a boat because the adults both went overboard and died. They are all under the age of 7. He has found multiple dead bodies because those people were not following safety regulations. My husband and friends put their lives on the line every time they go underway to make sure your family and friends are safe. Should they die because of someone elses stupidity, no but they do. Think on that a minute.

  25. PLO

    As a former CG Boarding Officer, licensed Merchant Marine and current law school student, I can tell you that the boarding team that boards your boat is NOT operating in a law enforcement capacity. While they might be armed, they are acting as nothing more than safety inspection officials. If during the course of the inspection, the officer observes signs that a crime has been committed and such signs give him reasonable suspicion, then he/she becomes the law enforcement officer.

    When I boarded recreation boats, I always explained what I was doing and why I was doing it. I encouraged every boarding officer/ boarding team member that I trained to do the same. If you’re uncomfortable with anything that is happening, ask questions. The officer is trained to explain 14 USC 89. As with any situation involving law enforcement, I would be polite, monitor their every move and document and report activity that you’re uncertain about.

    Bottom line, they don’t need any probable cause to board you because they’re not acting as law enforcement officers at that time. If you’re involved in any illicit activity, be sure to thoroughly cover your tracks as not to give the boarding party any reasonable suspicion. If charges are brought against you, exercise your fifth amendment right to shut up and lawyer up!

  26. Becky

    I think it’s funny that some of those complaining about the boardings are acting like Coast Guard crews get excited to come onto your boat and do the boarding. It is a job for them. And I can almost guarantee they didn’t join the CG just to be able to to boardings. Most of the time the crews who you meet are men and woman who joined so they could help save people. I am the wife of a Coastie who is currently deployed and I know the heart my husband has and I know that there is not 1 person he wouldn’t help. So next time you think of how inconvenienced you feel, you need to be thankful that there are people out there putting their lives on the line to save yours and one of those people is my husband – father of my children.

  27. 41 driver

    Alot of points already covered. I’ll add.
    That same boatcrew that comes aboard your vessel for an inspection is the same crew that responds to your call for help. The numbers show, the more boardings the CG does, the less search and rescue cases happen because the people are educated and prepared for the emergencies.

  28. John Hoog

    “Just think of all the people we helped who didn’t know they needed our help”. I’ll take my dangerous freedom over your safe slavery anyday.

  29. Dave

    I am a CG veteran. We have great respect for citizens and their rights. We are citizens. We are doing our citizens and country a huge favor. When off duty, we also get random checks from our service. It’s a part of life that shouldn’t bother us if we aren’t in violation. The many, many jobs of the CG is a total list of nothing but service to our country and it’s citizens, without regard for it’s own safety at times. Putting their life on the line for our way of life. Give them a break. How many live’s have been saved by a random check. Even one would be worth the inconvenience. Semper Paratus! (Always Ready)

  30. Julia

    Today, I went to the beachfront with my kids. I found a sea shell and gave it to
    my 4 year old daughter and said “You can hear the ocean if you put this to your ear.” She put the shell
    to her ear and screamed. There was a hermit
    crab inside and it pinched her ear. She never wants to go back!
    LoL I know this is entirely off topic but I had to tell someone!

    my page: anchor (Julia)

  31. Smedley Whimple

    this raise to many questions. If your boat is on the hard, do they have the right to search? If your boat is on a lift, do they have the right to search?

  32. dean matcheck

    “supposed God-given rights…????” Not from God, and not supposed, my friend, but from the supreme law of the land which is pretty clear even to incipient police-staters, whether you like it or not! I appreciate the other things the Coast Guard does, but when I want the Coast Guard to do this taxpayer and free citizen a personal favor I will contact them. In the meantime, if it’s ok with you Ed, I will still take offense at being accosted at gunpoint for doing nothing, in violation of the US Constitution. (Boarding really seems like a favor to you? Pretty twisted.) Recreational boater/retired Air Force.

  33. Al

    I’d take annual inspections over “we will board you whenever we wan’t ’cause we can.”

  34. Stephen

    I think the writer put forth several “reasonable alternatives”…recreational vs commercial, coastal vs. international waters, voluntary safety inspections, etc. Nor did he accuse the coast guard of not being courteous, professional or helpful. He also ponders ‘constitutional’ rights, not “god-given'(maybe Ed and I read different articles). I wouldn’t have a problem with a random boarding, though middle of the night or very often would be tiresome, but I wouldn’t be in favor of yearly inspections and stickers. We have plenty of that hassle with our cars.

  35. Ed Duclos

    Recreational Boater/Retired Navy. Chris, we live on the ICW near a small CG station in NC, and have developed a good relationship with them in connection with our neighborhood watch, EMS, wildlife/fisheries, fish and game, etc., services At ALL times I have found them to be professional, well-trained and courteous. We are thankful for their MANY services to our community and country, not just “boating safety” inspections. While you (and others) rail against the underpinning 220-year-old law’s exceptions to the 4th Amendment (without providing a reasonable and workable alternative) as “out-of-date” and “un-Constitutional,” you fail to take into account the changes in today’s world that require the CG to continue exactly as they have been doing. My advice: Get over yourselves and your supposed God-given rights, be polite, and cooperate as if the CG is doing you a favor…because they are!

  36. marco

    Regarding the question of which USCG personnel have authority to board… For involuntary boardings, you may expect the person in charge to be a certified USCG Boarding officer. These may be of any rate NCO, warrant, or commissioned officer (any Coastie except seaman, apprentice, and recruits). For voluntary boardings… if you are asked and say okay or nod your head, that is permission for anyone who asked to come aboard. The USCG takes their authority, among other sources, from: 14 USC 89(a). See Below. One added note on the subject– USCG only has authority for Federal law enforcement… not state or local laws, like registration taxes.
    “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the U.S. has jurisdiction, for the prevention, detection, and suppression of violations of the laws of the U.S. For such purposes, commissioned, warrant, and petty officers, may at anytime, go aboard any vessel subject to the jurisdiction or to the operation of any law of the U.S., address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel, and use all necessary force to compel compliance.”

  37. Jim

    We have about as many “rights” as your average prisoner in Auschwitz, but our guards are probably less courteous.

  38. Zuppy

    I would really like to have this article gone over by a real maritime/admiralty lawyer. I don’t believe it’s 100% true. I never trust legal opinions given by non-lawyers.

  39. Rich S.

    I understand needing to intercept contraband. I understand the need for safety inspections. But, do they have to be such assholes about it? Respect is a two-way street. If these cops can’t manage to treat us with respect, then they will not get it from us. This type of contempt and mistrust between private citizens and the government will not work in this country if we want to remain free, however, it’s perfectly acceptable for a police state.
    DWI checkpoints are a different story. Drunk until you prove yourself sober is unconstitutional. It is an unreasonable search, and is a violation of the fourth amendment. Especially since the cops are not required to quantify your BAC using a breathalyzer, they can make up anything they want with the subjective field sobriety test.

  40. 205guy

    Hello again, sorry for not coming back to the discussion earlier.

    I agree with Rich S. that the US generally has more militaristic and aggressive police and federal agents (border patrol, etc.). I think it’s just a reflection of the larger culture of guns and violence in the US. I have seen the swagger, the power-play of law-enforcement officers, not to mention the long history of overstepping their mandates (ie the law) by stopping people from filming them, using bogus charges to arrest protestors, pepper spraying, etc.

    But I think there is also a factor of being the big superpower, and thus the big target. In your example, Palawan is mostly a sleepy tropical tourist destination with a small local population. In Clark’s example, the Tijuana border crossing is perhaps one of the highest trafficked entry points, where traffic can either mean flow of people or flow of contraband (drugs mostly, but also people). The US HAS to be tough there because a non-zero percentage of people crossing the border ARE trying to get through the cracks.

    However, there is another difference between US police officers and those in the rest of the world. Everywhere else in the world, the police or military can stop anyone anywhere for any reason and ask for ID and begin questioning them (essentially, just like the CG in US waters). So in that respect, the US does have additional protections and a culture of probable cause required. Look at the uproar about the AZ law or the stop-and-frisk laws in big cities.

    Going back to Clark’s reply about the original topic (CG boardings), let’s imagine what would happen if the CG couldn’t just board and inspect any vessel. My answer would be that smugglers of all sorts would start to exploit these cracks in the system. I suspect that people would get lax with their boat safety as well. Essentially the random check pressure people to do the right thing, just like a DUI checkpoint on the roads. Actually, the DUI issue is very similar: the police can’t be in the parking lot/dock of every bar/marina to see who gets in their car/boat. So they have the authority to stop cars/boats arbitrarily to check for those things.

    I think we already agree that the boat safety issue could be solved with a yearly inspection and a sticker (in fact, that would probably be even better than the current situation). The question is then how would you create a system that prevents (and also intercepts) contraband? I don’t see any other way than the threat of random, unannounced boardings.

  41. Clark Beek

    Hi Rich S,

    You’d like San Francisco, where we don’t have a functional police department, and the only requirement to be a cop is to look good in shorts.

    I’ve experienced plenty of what you’re talking about. Just between the ages of 16 and 20 I was the victim of much abuse from customs officers at the Tijuana border crossing, where having a surfboard on your car guaranteed you’d go to secondary inspection. These guys would hold us for about an hour each time, cuss, yell at us, yell at each other, light firecrackers, total anarchy, all while chewing tobacco, which a guy spit on my shoes once. They don’t wear name tags, just numbers, so very difficult to pursue bad conduct. That situation has improved (or I just got older). Now there’s a Travelers Bill of Rights posted at every border crossing, with a 1-800 number.

    I don’t know why US officials are often like that. It seems very ineffective, because it puts people on guard, It seems like you’d be more likely to slip up if they’d lulled you into a sense of friendliness and security. When we were checking out of Australia once there was an American on loan to them for some sort of cooperative education. The rest were good-natured Aussies, polite and friendly, and the American was playing bad cop-bad cop. He was teaching them how to be abusive!

    I hope it’s not a hopeless as you say. I would hope that any freedoms we give up come with a real benefit, and that cost-benefit analysis is a constant part of the government’s process, but you’re right, the last decade hasn’t shown a lot of proof in the pudding.

    Cheers,
    Clark

  42. Clark Beek

    Hi 205guy,

    Thanks very much for your thoughtful comments.

    Your question, “Is it working?”, is certainly the pertinent one. I can’t find any published statistics, and GG, and law enforcement in general, at least on the water, is cagey about releasing any statistics to the public. My guess is there’s just not much to document: comparatively speaking, there are few accidents, crimes, arrests, etc. in inland waters. When we board an airplane we know what we’re getting in exchange for our 4th Amendment rights: demonstrable and measurable security. But what are we getting on the water?

    The whole idea of CG boardings as safety inspections, that we boaters are uneducated and that they need to surprise board us for our own safety chafes most of us. If one of their missions is to ensure the functional safety of recreational craft, then this is a poor, random way of doing it, which manages to trammel our privacy in the process.

    Under today’s law everything is “at the discretion of the boarding officer,” who may be a nice, rational guy/gal, or may have a serious chip on his shoulder for sailboats/fishing boats/power boats/asians/black people/rich people/whatever.

    Let’s have some kind of framework for these boardings other than “at the discretion of the boarding officer.” As you say, it should be written into law.

    From the former CG’s comment, it sounds like there is some CG internal “code of decency” that won’t anger the public too much, but this isn’t stated in the law. The law itself gives no limits, and can be interpreted differently over time. Both of the law scholars asked for examination and revision, which is probably the best we can hope for.

    As to the “fundamental reasons and real-life practical reasons for the way the law and the CG works nowadays” I don’t think that’s it. I think we’ve got an outdated, 220-year-old law on the books, which should have been put to bed a long time ago. If you read the comments under Part 1 by “Innate Thought,” he presents a cohesive legal argument that the law was never intended for recreational craft, and if put to the test would only apply to merchant vessels.

    You may be right, and the borders may effectively be at the dock, but I’d like to see this put to some scrutiny.

    An anecdotal note: I sailed to Australia twice on my travels, and the Aussies knew when I came within about 300 miles of their country. They overflew my boat with a C-130, contacted me by VHF, asked all the relevant questions, and booked my check-in with customs. Australia has every bit as much recreational traffic in their inland waters as the US, but they knew right away (powerful radar, I assume) when some boat was nearing from abroad. I’ve got the think the US has the same technology, and monitors our extra-territorial waters with the same zeal. We don’t just wait for trouble to show up on our doorstep.

    Cheers, Clark

  43. Rich S.

    We have traveled abroad 4 times since 2001, and everywhere outside the US, in Canada, Spain, Italy, Poland, Germany, and the Philippines, people with badges were polite, friendly, and respectful. On the island of Palawan, our flight was late, and the federal police officer at the airport let us put our bags in his office right next to the automatic rifle that was handcuffed to a bench. He was a nice, friendly guy. Officers gave us directions, told us where to park, opened a locked door to give us a tour in an old Spanish fort in Manila. Army officers chatted and joked with us when my wife and her sister wanted to visit the home they grew up in on the Army base where their father was stationed near Manila.
    However, it has been our experience that always upon returning to the US that this changes. People with badges are rude, belittling, insulting, threatening, impatient, frequently yelling without cause. Why does it have to be this way? What is different about Americans that makes us behave this way? I don’t know the answer to this question. But, it always annoys me. Maybe these steroid monsters, and those who suffer from “small-man syndrome” who wear these badges take these jobs because they like to push people around. They are the types who have had this militarism drilled into them in recent years. I think most of them were probably never in the military, so they have these jobs to live out their wannabe fantasies. Local police departments, even in small towns, are becoming paramilitary organizations, with their “high and tight” Marine Corp haircuts, and their vast weaponry courtesy of the DHS.
    The US is quickly becoming a national security police state, and I do not think most Americans are interested in stopping this. Certainly, no politician is interested in repealing the Revenue Cutter Act.
    Also, does anyone else see the hypocrisy of guys like Scalia who will whine about the original intent of the founders, but at the same time allow the Act to be used for purposes for which it was never intended?
    Fourth Amendment violations always make my blood boil. I guess that’s what makes me an active ACLU member. Unfortunately, even if the ACLU did file suit against the US over the Act, they would certainly lose.
    I’ve grown cynical since 2001. After Bush and his Iraq war, but even more so since Obama. Obama sold himself as something he is not. He certainly fooled me.
    As sailors, I think we have no choice but to resign ourselves to the fact that this practice of violating our rights will only get worse. But, the least the USCG could do is smile while they kick us in the teeth.
    Maybe, if it all continues to go too far, more Americans will wake up. But, don’t hold your breath.

  44. 205guy

    This series of articles is very enlightening. I read it once when it came out, and again just now after discovering more of Clark’s great writing. I’m a strong supporter of the 4th amenedment, and a critic of the government’s overreach. Yet from the practical point, the government needs search capabilities at the borders.

    Unfortunately for boaters, the borders are essentially at the dock, not the nearly-impossible to patrol territorial water boundary. After bemoaning the warrenless searches in the first 2 articles, this 3rd article essentially comes around to this point as well–how else would you implement contraband and immigration control? SF is just as close to international waters as SD, the Great Lakes all have international borders, and internal waterways (Mississippi, ICW, canals, etc.) all connect to the Great Lakes or the sea.

    Cars lose 4th amendment protection when they leave the country at a land border (the US can search them before coming back in, or within the controversial 100-mile border zone). Any boat in a waterway connected to international waters is able to cross into and out of the country without any checkpoint. Obviously, landlocked bodies of water should be excluded and policed by local authorities. But how do you implement that near-coastal solution of yours? Even with today’s technology, there is no way to track every vessel and make sure it doesn’t cross some imaginary line 2 miles offshore (or wherever they want to draw the line). Nor would you agree to being tracked (because you would need to be tracked by name, registration number, etc.).

    So I submit that it is the open nature of the water and its connection to international waters that required the warrantless search of boats in the past, and I don’t see how that could change today or in the future.

    The two CG veterans who commented seem to indicate that there are limits to the CG searches, in that they are limited to finding immigration violations (people) and contraband (drugs/weapons). I take that to mean that the CG cannot seize your phone or your computer on the boat–though maybe new anti-terrorism laws allow it.

    I do agree that such rights should be written into law, carefully, so that border protection can be achieved without trampling on other rights. But it won’t be easy or straightforward. In another example, house boats with no means of propulsion (motor or sail) should not be considered vessels (and should enjoy 4th amendment protection). But live-aboards, no matter how derelict the boat, are vessels (even if they’re tied to the dock for years). So, who is going to write the legislation that defines the difference between the two?

    Safety inspections should be changed to a yearly safety-check and sticker system, just like cars at the DMV. Theoretically, then, there would be a state jurisdiction (a water police, if you will) that would enforce boating rules according to the constitution (stopped and boarded for observable infraction only: wrecklessness, oil slick, visible alcohol, etc.). But with the CG already on the water able to do this duty, who is going to fund a parallel force? Except for a few boat rangers, most state and local police are land-based and rely on the CG for enforcement on the water. It’s just an issue of cost and efficiency.

    In other words, I think there are fundamental reasons and real-life practical reasons for the way the law and the CG works nowadays. Which also begs the question: is it working? Yes, there are scary boardings and hours of delay, but have there been blatant cases of search and seizure that would be considered illegal on land (eg routine random boarding, ripping apart the boat, discovering pot, seizing computers, money, and/or entire boat)? If so, hopefully there can be laws made to limit the searches to border concerns, but don’t expect warrantless searches to be stopped in any water connected to international waters.

  45. Clark Beek

    The short answer is I don’t know but I’m trying to find out. Paul Calder’s incident (http://www.sailfeed.com/2013/01/bumbling-from-miami-to-bimini-and-an-encounter-with-the-powers-that-be/) poses similar questions. When does customs have the right to board and search you? I would think it would only be upon entering or leaving the country, but I guess if you’re still within the country’s exclusive economic zone or within the 12-mile limit they can still board and search? I used to get hassled coming back from Mexico by car, and as Paul Calder can attest, agents who don’t have to give their names lack accountability and can behave badly.

    I mostly know small west coast harbors where there are both a Coast Guard and a police/sheriff/harbor patrol presence, so their duties don’t seem overlap much. I wonder if any of them claim that the Coast Guard can “assign” its title 14 section 89 powers to other agencies? The wording is very clear that the law only applies to the Coast Guard, but who knows?

    I agree that we boaters are being stepped on all over the place, but these incidents don’t get the publicity or sympathy of their land-based equivalents.

    If they could prove any good was being done through these boardings it might be a different story, but all maritime agencies are very cagey about publishing any statistics. My guess is that they’re finding a few expired fire extinguishers and small rips in life jackets, and not catching too many terrorists or people smugglers. It may be different down in your neck of the woods where Cuba isn’t far off and drug smugglers are active, but again, probable cause points to boats that look like people smugglers or whatever, instead of a family out on there recreational boat for the weekend.

    Thanks for your comment!

  46. Jason

    I discovered your website accidentally, very informative. I have the same question. What about the other agencies? We have Natural resources officers, Sheriffs, County police, State marine police, etc. Are they required to have probable cause? I’ve been boarded by the Coast Guard and they have always been nice and respectful, but all of the other agencies are a different story. State marine police, Natural resources officers (Game Wardens as we call them in the south) and county police are all awful. If you get stopped by them you will get a ticket no matter what, they will keep searching until they find something, ALWAYS! They are very rude and harassing. I had a friend stopped by a state marine police last week and was given a ticket because he had a small rip in the fabric of one life jacket. He told the officer as soon as he was pulled over that he had an inspection a week earlier by the Coast Guard that the officer said, “I don’t give a Damn what you have!”. I’ve heard many other stories where the state marine police and wildlife officers have searched people outside of their jurisdiction in international waters and written them tickets for things like a fish being 1/4 of an inch to short. Another time the marine police boarded a legally anchored sailboat in a large bay at 10 pm at night and arrested a man for BUI (boating under the influence). They asked him if he had been drinking and she said he had some drinks earlier, but he and his wife we at anchor and sleeping at that spot for the night, off to jail he went. Do these agencies have the same rights to search you as the coast guard does? A police officer cannot stop you on land for no reason and ask you for your ID if there is no probable cause of a crime being committed so how can a wildlife officer ask for your fishing licenses for no reason or state marine police check the dates on your flares for no reason? I just seems like these agencies have overstepped their boundaries and are out there only to generate revenue.

  47. Tom

    As an active Coast Guard Auxiliarist, I choose working in the auxiliary specifically because the Aux does not have law enforcement powers. The Powers the USCG has in boarding vessels – regardless of their reasons or intentions – is a flagrant violation of the 4th amendment, and it’s too bad the courts haven’t had the cojones to say so. The 1790 Cutter legislation should only apply where there is suspicion of tariff avoidance, as it was intended.

    I wouldnt count on Congress to change anything…but its time that recreational boaters DID ask the ACLU or other organizations to take this all the way to SCOTUS and start chipping away at the unbridled power that has been given the the USCG.

    In the meantime, I will keep doing voluntary Vessel Examinations in the hopes of keeping responsible boaters from being hassled.

  48. Chris

    To Mike M-

    “A small price to pay for the service they render”? I don’t see the connection between warrant-less searches and helping distressed boaters…

  49. Chris

    Response to former CG: Inspections of buildings, as you compare to CG stopping my boat and boarding without permission, is a bad comparison. City inspections are scheduled, so if you have something you dont want them to see, either illegal contraband or things not up to code, you have time to hide or fix the issue.

    I also take exception to your use of expectations of privacy, but in my experience most law enforcement officers would disagree with my ideas of privacy…until it applies to them.

    Also, I’ve never heard of a cop pulling someone over to lift their hood and check the horn, or oil pan, or if their lights work (during the day). Most incidents where a vehicle is pulled over for safety issues are when the safety devices aren’t working,. i.e. a headlight/brake lights out.

    But, I know it was your job and probably feel strongly about it and that you were operating within the law, because you were. The issue here isn’t whether CG can board without PC, its that the law was created for a different purpose and is outdated. There are many old laws that need to be changed or reinterpreted through a modern lens, but this is one of the most blatant…at least in my opinion.

  50. Carl Roosa

    What about the other agencies? We have Natural resources officers, Sherrifs, County police, etc. Are they required to have probable cause?

  51. Outofcontrol

    Soooo…you mentioned three different geographic areas where you agree/don’t have a problem with CG boarding authority/practices, but indicate that the 4th amendment should apply to everyone else not in those places. Read: everyone else, but YOU…right?

    Truth is…the 4th amendment DOES apply to everyone equally, to include off the coast of San Diego, offshore, etc. What you are failing to see is that just like a police officer can conduct a roadside inspection of your vehicle to insure your vehicle is operating within legal guidelines, the CG can do the same, but because of the unique nature of the maritime environment, they have to do it from inside the vessel, vs the outside. If probable cause is gained from their legal presence inside the vessel, they will finish the INSPECTION and afterwards initiate a law enforcement INVESTIGATION.

    The long and the short of it is…the CG can’t tell by just looking at you (even with our high speed, iPhone reading cameras *roll eyes*) if you are operating the vessel safely/legally. If you are, great…have a great voyage. If not…well, stand by.

    Passing one one bell, cap’n.

    Former CG boarding officer sends–

    ///

  52. FORMER CG

    Sorry but this information is incorrect. The CG can stop and board your boat with PC or a warrant to determine flag status and ensure compliance with regulations. They can enter man size spaces to check for people on board, access spaces to trace valves, pumps an check for sea worthyness and known weapons. They can not enter spaces with a reasonable expectation of privacy. In order to go through places for a reasonable expectation of privacy they need probable cause and permission from a flag officer or the consent of the owner. Why do we check safety equipment unlike a cop on land? Because most boaters are in educated in boating (no drivers license or annual inspection required). Example a broken blower, dirty back fire arrester and expired fire extinguisher is a extremely hazardous situation. They are here to educate and for the safety of rec boaters. If there is reasonable suspicion that a crime has been committed while onboard then a criminal investigation begins and PC has to be developed before a search into a space with a reasonable expectation of privacy can commence. This is why it is not a violation of the 4th amendment.
    I own apartment buildings and they have to be inspected annually by the city for safety compliance so would that inspection be violating my 4th amendment rights as a property owner? Now if the inspector came across evidence that a crime had been committed while on his inspection and reported it to police the police would then enter the building based on PC. The CG boarding team is playing both roles as an inspector and police officer because they have the capibility to do so.

  53. Mike M

    Seems a small price to pay for the service they render maybe the rest of our government should take a hint from them (on professional courtesy).

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